The Office of the Prosecutor of the International Criminal Court (ICC) announced Tuesday that it has asked Trial Chamber IV for authorization to withdraw all charges against former Sudanese rebel commander Abdallah Banda Abakaer Nourain, concluding that the evidence is no longer sufficient to sustain the case. The proceedings are formally titled The Prosecutor v. Abdallah Banda Abakaer Nourain, case number ICC-02/05-03/09.

Prosecutors said the passage of time had substantially weakened the evidentiary basis of the case. This was because several witnesses have become unavailable or unwilling to cooperate, while credibility concerns have emerged regarding other key witnesses. The Office also obtained exculpatory material that further undermined the allegations. Having exhausted the investigative avenues reasonably available, the prosecutors determined that there were no longer substantial grounds to believe Banda was responsible for the charged crimes.

The withdrawal request was originally filed confidentially on October 5, 2023, pursuant to Chamber orders. The prosecution said its decision followed an objective review of incriminating and exonerating evidence and reflected its obligation to proceed to trial only where the evidence is sufficient. If the judges approve the application, the proceedings against Banda will terminate, although prosecutors could also bring new charges arising from the same or similar facts if sufficient evidence later emerges.

Banda served as commander-in-chief of the Justice and Equality Movement Collective-Leadership. Prosecutors charged him with three war crimes arising from a September 29, 2007, attack on the African Union’s Haskanita Military Group Site in Darfur. The charges concerned violence to life, intentionally directing attacks against personnel and property involved in a peacekeeping mission, and pillaging.

The ICC issued Banda a sealed summons to appear on August 27, 2009, which was unsealed on June 15, 2010. The Pre-Trial Chamber confirmed the charges on March 7, 2011, and Trial Chamber IV issued a warrant for his arrest on September 11, 2014, after finding that it was necessary to secure his appearance.

The case initially also involved Saleh Mohammed Jerbo Jamus, then chief of staff of the Sudanese Liberation Army-Unity and later associated with the Justice and Equality Movement. Jerbo faced the same charges over the Haskanita attack, but Trial Chamber IV terminated the proceedings against him due to his passing away on October 4, 2013.

Deputy Prosecutor Nazhat Shameem Khan acknowledged that withdrawing the charges would affect victims who had waited years for justice, but said the Office had a duty not to take a case to trial without adequate evidence. She stressed that the request concerns Banda alone and does not alter the prosecution’s work on other alleged atrocities in Darfur or its investigation into crimes arising from Sudan’s ongoing conflict.

Sudan is not a party to the Rome Statute, but the ICC may exercise jurisdiction because the UN Security Council referred the Darfur situation to the Court through Resolution 1593 on March 31, 2005. The referral covers Rome Statute crimes committed in Darfur from July 1, 2002 onward and marked the Security Council’s first referral to the ICC. The Court opened its Darfur investigation in June 2005, examining allegations of genocide, crimes against humanity, and war crimes. In recent years, the ICC prosecutors have repeatedly warned the Security Council that escalating violence in Darfur needs renewed action to secure accountability.